With Aereo appeal, broadcasters threaten the foundation of locker services

After losing in court earlier this month, the broadcasters trying to shut down TV streaming startup Aereo are asking for another chance to make their case. This time, their aims are broader. They warn of dire economic consequences if a broader panel of judges from the Second Circuit Court of Appeals doesn't reconsider the previous decision, which was decided by a narrow 2-1 margin.

Aereo's technology is designed to take advantage of a landmark 2008 ruling by the Second Circuit, based in New York. It held that a "remote DVR" service designed by Cablevision was legal because it kept a separate copy of a program for each user who recorded it. Reasoning that the same principle should apply to broadcast television, Aereo built a television streaming service with thousands of tiny antennas. Aereo claims that because it assigns each active user an individual antenna, and stores separate copies of recorded programs, it isn't infringing copyright holders' public performance rights.

On April 1, two judges from the Second Circuit accepted Aereo's argument, ruling that its service was no different, legally speaking, from renting a TV tuner with a really long cable. But Judge Denny Chin dissented, described Aereo's technology as "a Rube Goldberg-like contrivance, over-engineered in an attempt to to avoid the reach of the Copyright Act."

Now broadcasters are asking for the case to be reheard by an "en banc" panel consisting of all Second Circuit judges. The broadcasters hope that Judge Chin's argument will carry the day on the larger panel.

The company's existence, and the future of many other cloud-based businesses, hangs in the balance. Aereo's entire business strategy relies on Cablevision's 2008 legal victory, and the broadcasters are asking the appeals court to overturn it.

High stakes

Right now, cable and satellite companies pay broadcasters for licenses to re-transmit their content. The broadcasters warn that the Aereo ruling "will swallow the entire retransmission licensing regime. Cable and satellite companies like Time Warner Cable and Dish Network are already threatening to partner with Aereo or use Aereo-like set-ups. And broadcasters, faced with losing a revenue stream critical to supporting free, over-the-air television, have been forced to consider converting their broadcast networks to subscription-based cable channels."

The broadcasters believe that the fundamental problem with Aereo can be traced back to reasoning of the Cablevision decision. Broadcasters say that when a company like Cablevision or Aereo transmits multiple copies of the same work to different customers, that should be considered a public performance regardless of whether the content was received by different antennas, stored as separate copies, or transmitted to customers at different times.

The broadcasters couldn't directly attack the Cablevision ruling during its earlier appeal because only a full en banc panel has the power to overturn earlier precedents. The three-judge panel that handed down this month's decision was bound to apply the Cablevision ruling whether they agreed with it or not. But the full Second Circuit has the option to overturn earlier precedents.

"Cablevision’s statutory analysis was plainly wrong," the broadcasters now argue. They say it would make no sense for Congress to set up a scheme for licensing retransmission of broadcast television content while allowing companies like Aereo to circumvent that licensing regime with a technical gimmick.

A coalition of major studios, unions, and other groups connected to the film industry also filed an amicus brief in the case to encourage the Second Circuit to re-hear the case. They don't urge the Second Circuit to overturn Cablevision, but they argue for a narrower interpretation of the ruling.

"The Majority could have found that Cablevision’s examination of the legality of the RS-DVR functionality as part of an otherwise licensed service was factually distinguishable, since Aereo’s mass retransmission activities are conducted without any authorization from copyright owners," Hollywood said in its brief.

"A weird result"

Ars talked to James Grimmelmann, a visiting professor at Georgetown Law School, about the broadcasters' request. He agreed with the broadcasters that "we're getting into a weird result that it's not clear Congress intended."

However, he said, "you have to work with the definitions Congress actually gives you." The fundamental problem, in his view, is that Congress's definition of a public performance is "not really susceptible to any coherent interpretation. The unique copy rule [from Cablevision] at least gives you a coherent rule."

In the last five years, the Cablevision decision has become the legal foundation for cloud storage services such as Google Music and Amazon Cloud Player. Many different users of those services upload copies of the same song. If transmitting the same song to multiple users constitutes a "public performance," then Google and Amazon would need licenses from the publisher of any song that more than one user uploaded. In practice, that would mean music locker sites couldn't exist.

Overruling Cablevision could be "tremendously disruptive," Grimmelmann told us. And according to Grimmelmann, even Hollywood's narrower interpretation of Cablevision could prevent online locker services from offering streaming capabilities.

Grimmelmann is ambivalent about the possibility that Aereo could undermine free, over-the-air television. "One might question whether free over-the-air television is a good use of spectrum," he told us.

Timothy B. Lee
Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times. Emailtimothy.lee@arstechnica.com//Twitter@binarybits

Love you people with the dying business model remarks. You want them to die then don't cry when there is nothing new on TV.

Lots of immature adult aged children running around not aware that the Aereo they are cheering also fails without OTA TV. Same immaturity that let's them ignore the number of less economically fortunate who end up with no TV, potentially no mass communications involvement at all at that point. Around 40% of the US population gets their TV OTA.

I guess I missed it, but how does this kill broadcasting? I thought the more tuned in antennas, the more the profit; or did the broadcasting business model change?

Broadcasters also get licensing fees from the cable companies that carry local channels. They fear that cable companies will switch to carrying broadcast stations via a one-antenna-per-subscriber model that gets integrated into the cable feed.

DVRs have been around too long and have become too ubiquitous to be disputed as legitimate. Trying to unravel that thread also has "slippery slope" implications going all the way back to VHS tapes, and audio recordings before that. I'm not convinced these broadcasters realize the s***storm they're about to stir up.

They actually do. The content providers whether broadcast networks, hollywood studios, or music publishers, even book publishers have fought tooth and nail every time technology has allowed for any kind of copying of their content. From copy machines to recordable cassettes to VHS to MP3 and DVR every step of the way they have tried to sue and set legal precedent that these technologies violate their copyrights.

The law however says otherwise. Public performance of a copyrighted work is clearly defined, and individuals are clearly defined as having the right to create copies for personal use of their legitimately acquired copyrighted works. Cablevision and now Aero have continued this path to it's logical conclusion. A person with legitimate access to copyrighted material may create store and view copies of their content without it violating copyright. Services facilitating such activities are also legitimate.

If they manage to get this overturned it creates a precedent that can be argued all the way down that line of reasoning which is why no reasonable judge would overturn it. The content companies would LOVE to say people can not create personal copies of works they have argued that as long as it has been a possibility.

As for the broadcasters taking their ball and going home we can only hope. If you are one of the few who rely on OTA broadcast think about it this way. If you can get solid broadcast service that spectrum could be re purposed to giving you solid broadband by any of the many companies eager to get their hands on so much juicy spectrum this is competition for the cable monopolies which will drive down prices and get you reasonably priced broadband. In fact since the broadcast spectrum is currently mandated to provided the content on it for free you may see the repurposed spectrum get a similar caveat.

The real downside is that if the broadcasters do pull out of OTA Aero the instigator in all of this is out of business.

1. One reason I don't want to see OTA broadcasting die completely is things like emergency alerts. As pointed out above, not everyone gets broadband, and not everyone can afford broadband. If you have a TV, you can get weather and emergency alerts OTA without having to pay a monthly fee to some service. As long as you have a receiver and can pay your electric bill, you're good.

2. If the big networks decide to stop OTA broadcasting and go to a subscription model, what does that do to the ad agencies? What does it do for the whole notion of "ratings" (which are used primarily to determine ad rates)?

3. How would this affect what content becomes available? TV shows are expensive to produce; would exchanging ad revenue for subscription fees change that dynamic?

1) Emergency alerts didn't exist before broadcasting. People bought the technology to be able to receive them. If the spectrum is reallocated to Internet-type services, people can buy the technology to receive it. If people want to offer free Internet in their local area for certain services like weather, then by all means do so in a manner consistent with evolution.

Evolution does not mean reinventing the wheel. How about a weather radio, which turns itself on and tells you when bad things are coming, powered by existing OTA broadcasts. It even runs on batteries, or solar, or space-age crank technology. $40 from Amazon.

Love you people with the dying business model remarks. You want them to die then don't cry when there is nothing new on TV.

Lots of immature adult aged children running around not aware that the Aereo they are cheering also fails without OTA TV. Same immaturity that let's them ignore the number of less economically fortunate who end up with no TV, potentially no mass communications involvement at all at that point. Around 40% of the US population gets their TV OTA.

I am disappointed at the number of #DealWithIt replies. In my past, I had to choose between cable TV and food. No, I am not exaggerating. So guess what, no cable!

Funnily enough, I discovered shows on OTA TV that I would have never seen otherwise. I got hooked on Univision because of it.

Also, my own background in radio broadcasting makes me biased. I think OTA has, and will have, an important role in society for a long time to come.

I am disappointed at the number of #DealWithIt replies. In my past, I had to choose between cable TV and food. No, I am not exaggerating. So guess what, no cable!

How is that even a question?!? Food is a necessity of life, TV is a waste of life.

It's not a question. It's a reaction to comments which seem to be from people who have never wanted for anything in their lives. The "let's get rid of OTA and have people buy technology to do something they can already do with things they already have in their house for free" comments, particularly.

I remember thinking that it would take decades for the archaic business model that is broadcast television to finally die. If Aereo manages to kill it in the next few years, that would be absolutely fantastic.

Quote:

Let the broadcasters die, move to a pay-per-view/Netflix model, repurpose their absurdly wasteful use of spectrum to the wireless broadband carriers (who for all of their faults certainly have innovated), and watch the quality and variety of content expand by orders of magnitude.

The whole remodel as Netflix-like service is a good idea...if people have the Internet connection to handle it. Not everybody has your level of Internet connection. Some have satellite and some have no Internet at all. My grandparents are in the latter and have basic cable. I have a TV tuner and tend to use it and the antenna that came with it when I'm in the big city to watch TV when going on family vacations. I bought a TV and an antenna for my grandmother so she can watch TV during the week while she is working at my aunt's daycare and staying at my aunt's house (they're EXTREMELY anal about no TV during the week for their kids, though videogames are OK, don't ask) since in the Denver metro area one gets ABC, CBS, NBC, Fox, and some others OTA.

Quote:

Think about the innovations in the wireless/mobile space in the past few years. Now compare that to broadcast television, which is substantially the same as what it was in the 1940s: generally crappy, homogenized content delivered at set times of the day with ad-based support. The broadcast model is terrible for consumer choice, because it requires that any given show have an enormous viewership to justify using up 100% of the available bandwidth to stream it to everyone simultaneously. The only content that everyone is willing to watch is, generally, of relatively middling quality.

Because data caps that I would easily blow past watching TV over the Internet with are a *great* innovation. /s

Seriously, ads are how broadcasters pay the actors (along with broadcast fees) and the affiliates pay their newscasters. OTA TV is not crappy. It is a (relatively) cheap way to broadcast to a large (now smaller duw to the analog-to-digital transition). I remember way back when a snowstorm that knocked out the cable (we had dial-up internet sooo...no CNN.com) and I remember watching KCNC from over 180 miles away.

OTA TV is still a powerful tool to transmit real-time information and entertainment and to think of it any less so is naive. I think it is even more powerful than radio, but only because TV has pictures that ease the visualization of what we hear.

Love you people with the dying business model remarks. You want them to die then don't cry when there is nothing new on TV.

Lots of immature adult aged children running around not aware that the Aereo they are cheering also fails without OTA TV. Same immaturity that let's them ignore the number of less economically fortunate who end up with no TV, potentially no mass communications involvement at all at that point. Around 40% of the US population gets their TV OTA.

Those 'immature adult aged children' seem, from here, to be cheering on a law-abiding company facing legal challenges from other companies whose premise appears to be 'pay us whether or not it's required by law'.

I can absolutely see people cheering for someone whose opposition's motto could be summed up as 'fuck you, pay me'.

Mind, my post is no less an hyperbolic, over-simplified one than yours, but there you go. The 'real' issue here, IMO, isn't OTA vs cable, or OTA TV vs wireless broadband, but copyright-holding corporations vs everyone else. The sense of entitlement on the part of copyright holders is obvious here; the 'proper' place for their complaint is congress, but congress can't get them the desired result nearly fast enough (though based on the legislative history, congress is virtually certain to give them the desired result), so they're using the courts in the meantime.

I also happen to think that the social consequences of simply adopting the 'fuck you, pay me' approach to copyright will be significant and negative, but that's a different (though related) issue, and I don't really want to be the guy who starts that particular dog-fight in this thread. My apologies if this post does so.

Evolution does not mean reinventing the wheel. How about a weather radio, which turns itself on and tells you when bad things are coming, powered by existing OTA broadcasts. It even runs on batteries, or solar, or space-age crank technology. $40 from Amazon.

Does that weather radio display radar maps of storms? Pictures are useful for lots of things relating to emergencies.

Yes we are all damned pirates and thieves, could you please just go away now and leave us alone?

This us vs. them situation will come to a head at some point, I hope it's soon because the way it is now is unbearable.

The sweet irony is that pirate ships back in the day may have been a testbed for egalitarian democracies. This is sharp contrast to trade and military vessels where the captain was the supreme dictator.

But Judge Denny Chin dissented, described Aereo's technology as "a Rube Goldberg-like contrivance, over-engineered in an attempt to to avoid the reach of the Copyright Act."

As if trying to expand the concept of a "public performance" to include me renting an antenna to watch an OTA broadcast isn't a bit of a 'contrivance', Judge?

To my mind, the public performace was the OTA broadcast, not me using an antenna to receive the signal which was broadcast.

Beat me to it.

If "we" are doing it, it's merely defending our legal and moral rights. But if "they" are doing it, it's a contrived evasion of their legal and moral obligations.

By the same logic, what Aereo did was simply the rational response to a Rube Goldberg-like contrivance, over-argued in an attempt to expand the reach of the Copyright Act . Sauce for the goose is sauce for the gander... and all that.

Evolution does not mean reinventing the wheel. How about a weather radio, which turns itself on and tells you when bad things are coming, powered by existing OTA broadcasts. It even runs on batteries, or solar, or space-age crank technology. $40 from Amazon.

Does that weather radio display radar maps of storms? Pictures are useful for lots of things relating to emergencies.

FTA TV is not dead, the US should embrace it! Check out Australia where nearly every home has an Antenna, Cable TV is less than 30% of the market and cord cutters are on the rise partly due to the crappy subscription service but mainly because our FTA channels deliver reasonable content and have catchup services. PLUS we are the worlds 2nd highest bit torrenters.

You don't like the deal anymore where we the people give you spectrum and you provide a service in the form of OTA entertainment and news while making money? Fine, we'll take the spectrum back back and use it for something else.

There shouldn't be any "retransmission licensing regime" to begin with.

I should not have to pay you for the priveledge of propagating your commercials to a wider audience.

Right now, cable and satellite companies pay broadcasters for licenses to re-transmit their content. The broadcasters warn that the Aereo ruling "will swallow the entire retransmission licensing regime. Cable and satellite companies like Time Warner Cable and Dish Network are already threatening to partner with Aereo or use Aereo-like set-ups. And broadcasters, faced with losing a revenue stream critical to supporting free, over-the-air television, have been forced to consider converting their broadcast networks to subscription-based cable channels."

Honestly, I’m not too sure anything good is going to come out of this with the broadcasters saying they’ll go to subscription only and carriers saying they’ll build these antenna arrays if they don’t, unless it’s just hyperbole. Or, perhaps, some sort of legislative option where I think the broadcasters and carriers will win. If OTA broadcasts are only a minor income stream—where the broadcasters say they’ll cut broadcasts if it means they get to keep the licensing fees—then I think we’re just going to see the broadcasters more in bed with the carriers.

And Aereo loses, along with the poor and the old who watch OTA broadcasts. And, of course, the spectrum will be sold at well below value to the carriers -- AT&T and Verizon both being in the cellular game – because the populace doesn’t think of the spectrum as collectively theirs and the politicians can make a lot of money off that fact.

It’s disappointing to see an opportunity to drive a wedge between content and should-be-a-goddamned-utility carriers/ISPs have the opposite effect. As much as I want to hate content with it's ridiculous IP-shenanigans and mediocre programs, they at least bring something of value to the table. The carriers and ISPs bring only the financial and hugley inflated bureaucratic costs of replacing them.

And Aereo loses, along with the poor and the old who watch OTA broadcasts. And, of course, the spectrum will be sold at well below value to the carriers -- AT&T and Verizon both being in the cellular game – because the populace doesn’t think of the spectrum as collectively theirs and the politicians can make a lot of money off that fact.

Any revenue the spectrum brings in would be a vast improvement over the complete and total giveaway to the TV broadcasters. Their free licenses should be yanked and they can bid like everyone else.

Maybe I'm in the minority here, but I get all my TV over the air. We don't have cable (and won't pay the ever-rising costs) and without cable, have very little choice wrt broadband (slow DSL is all we can get). So, what would we do for TV programming if, as so many of you seem to delight in, over the air TV were to die? Great (or neutral) for those with $$ and access to fast broadband, not so great for others.

Read a book?

I mean, really, not snarkily. I haven't had broadcast TV in nearly 10 years. I download (or stream, but I understand that may not be appropriate to your situation) the very few programs I do watch that are "on the air", purchase discs of others, and well, read.

And Aereo loses, along with the poor and the old who watch OTA broadcasts. And, of course, the spectrum will be sold at well below value to the carriers -- AT&T and Verizon both being in the cellular game – because the populace doesn’t think of the spectrum as collectively theirs and the politicians can make a lot of money off that fact.

Any revenue the spectrum brings in would be a vast improvement over the complete and total giveaway to the TV broadcasters. Their free licenses should be yanked and they can bid like everyone else.

I disagree strongly on this point. The TV broadcasters were given their licenses for 'free', but with significant catches, mostly bundled up in 'Public Service' requirements. These include news, EBS/EAS service, regulations on what they can/can't show at what times, requirements for public service announcements, political coverage, etc. These services don't come cheaply. Note that in the 700MHz auction, the only block that carried anything like 'public service' requirements didn't sell. Wireless companies are quite, quite happy to shell out (hundreds of) millions of dollars so as to avoid any sort of public service requirements.

The value of those public services can be debated, but the perception of the cost to wireless carriers is crystal clear. Don't forget those items in any sort of cost/benefit calculation you perform.

Now, I'm not trying to give OTA broadcasters a free pass here. It certainly looks like we should be trying to reduce their spectrum grants, and perhaps even consider replacing this infrastructure with something else entirely. If we do so, we should also carefully consider those services that are currently being performed by OTA broadcasters (on their dime), and either mandate a similar service in whatever new system we put in place, or instituting a separate system run by a separate entity.

These broadcasters need to go f**k themselves, seriously. They fight every single bit of technology that gives consumers any choice or power. If it was up to them we wouldn't even have remote controls because "it would lead to the death of the industry" if we could change channels during commercials or mute them.

Aereo uses technical contortions so their business model fits within copyright law. So what? Media (and other) companies have been abusing copyright law to the point of absurdity for decades. DMCA anti-circumvention bullsh*t stops people from legally backing up DVDs they paid for, for just one example.

Media companies want to put Cablevision on the table? OK let's put copyright law and the DMCA up there too and get to cutting, bitches. I'll bring my chainsaw and a lot of friends with ideas for change.

Maybe I'm in the minority here, but I get all my TV over the air. We don't have cable (and won't pay the ever-rising costs) and without cable, have very little choice wrt broadband (slow DSL is all we can get). So, what would we do for TV programming if, as so many of you seem to delight in, over the air TV were to die? Great (or neutral) for those with $$ and access to fast broadband, not so great for others.

If they switched OTA to being more of a distribution platform then you'd not have to worry. People could pay a small fee, like in the UK, to receive "the stream", and then using whatever DVR they want, record TV 'OTA' for watching later. There is a tremendous amount of bandwidth available, close down 90% of the OTA spectrum and leave the last for a national platform where all those OTA broadcasters can toss their content onto. It'd be no different to the $X for unlimited music or movies or whatever you get through Netflix and so on.

And Aereo loses, along with the poor and the old who watch OTA broadcasts. And, of course, the spectrum will be sold at well below value to the carriers -- AT&T and Verizon both being in the cellular game – because the populace doesn’t think of the spectrum as collectively theirs and the politicians can make a lot of money off that fact.

Any revenue the spectrum brings in would be a vast improvement over the complete and total giveaway to the TV broadcasters. Their free licenses should be yanked and they can bid like everyone else.

I disagree strongly on this point. The TV broadcasters were given their licenses for 'free', but with significant catches, mostly bundled up in 'Public Service' requirements. These include news, EBS/EAS service, regulations on what they can/can't show at what times, requirements for public service announcements, political coverage, etc. These services don't come cheaply. Note that in the 700MHz auction, the only block that carried anything like 'public service' requirements didn't sell. Wireless companies are quite, quite happy to shell out (hundreds of) millions of dollars so as to avoid any sort of public service requirements.

Instead of news we get infotainment and corporate propaganda, and instead of educational programming we get vectors for selling useless crap to our kids.

I'll take cold hard cash instead of 'payment' like that any day of the week and twice on Sunday.

The point is not so much that OTA should go away. It certainly still serves a public interest; you shouldn't have to buy cable to get basic news and emergency updates in addition to the entertainment stuff. That is, if you happen to be somewhere where you can actually get an OTA signal. In most homes where Aereo is operating, they can't get the OTA signal, so their choice is to either buy cable (which the broadcasters want, since they get paid extra) or buy the cheaper Aereo service to get something that is supposedly free.

So fine, keep 1 or 2 channels in the spectrum, make them the emergency/news/weather channels. Or take the tens of billions they could make from repurposing the spectrum to fund free wireless internet. Seriously, how many people don't have smart phones, or at the very least mobiles? Or radio? I hardly think basic news or emergency updates need to come visually.. Buy everyone in America an emergency/local radio/news device for $10, let them use that..

FTA TV is not dead, the US should embrace it! Check out Australia where nearly every home has an Antenna, Cable TV is less than 30% of the market and cord cutters are on the rise partly due to the crappy subscription service but mainly because our FTA channels deliver reasonable content and have catchup services. PLUS we are the worlds 2nd highest bit torrenters.

Yea only because it can take months/years to get american programming.. They are apparently working on it, but seriously, with how the internet and social media is nowadays, you've got about 2 days to watch something if you want to stay 'current'. Not saying there is an inherent right or anything to be 'current', but I'd be willing to bet my left nut if Netflix (or TW, or whatever) opened up to AU you'd convert those ~100k TPB Game of Thrones downloads to streamed in a heartbeat. Well, maybe not ALL of them, but a lot.

Frankly myself personally, I might download about 10 shows a week, maybe 2-3 movies, and I'd be more than happy to pay a very reasonable amount, say $.5/view (so about $30/mo, a fair bit, but less than $130 or whatever someone mentioned before for 200 channels of crap), or even some sort of unlimited plan ($50/mo for all you can eat TV, movies, music).

And Aereo loses, along with the poor and the old who watch OTA broadcasts. And, of course, the spectrum will be sold at well below value to the carriers -- AT&T and Verizon both being in the cellular game – because the populace doesn’t think of the spectrum as collectively theirs and the politicians can make a lot of money off that fact.

Any revenue the spectrum brings in would be a vast improvement over the complete and total giveaway to the TV broadcasters. Their free licenses should be yanked and they can bid like everyone else.

I disagree strongly on this point. The TV broadcasters were given their licenses for 'free', but with significant catches, mostly bundled up in 'Public Service' requirements. These include news, EBS/EAS service, regulations on what they can/can't show at what times, requirements for public service announcements, political coverage, etc. These services don't come cheaply. Note that in the 700MHz auction, the only block that carried anything like 'public service' requirements didn't sell. Wireless companies are quite, quite happy to shell out (hundreds of) millions of dollars so as to avoid any sort of public service requirements.

Instead of news we get infotainment and corporate propaganda, and instead of educational programming we get vectors for selling useless crap to our kids.

I'll take cold hard cash instead of 'payment' like that any day of the week and twice on Sunday.

Sadly, I have to agree with Faramir here. I'm not even sure how I feel about it as a revenue source since it's almost certainly just getting passed down to the consumers, though as a limited resource some cost should be. The bandwidth's nice, though.

You could earmark the money from the auctions for PSAs and targeted ads (which are easier with smartphones, etc.) but I think you'd do better trying to make better consumers of news (education) than you would trying to make a bunch of news that people might not even watch. The people who already want decent news probably have already dug up their sources.

Yea only because it can take months/years to get american programming.. They are apparently working on it, but seriously, with how the internet and social media is nowadays, you've got about 2 days to watch something if you want to stay 'current'. Not saying there is an inherent right or anything to be 'current', but I'd be willing to bet my left nut if Netflix (or TW, or whatever) opened up to AU you'd convert those ~100k TPB Game of Thrones downloads to streamed in a heartbeat. Well, maybe not ALL of them, but a lot..

I agree here. It doesn't make sense to not vastly increase your audience, though I think there's some legal/market forces I haven't considered in this case. Or in could just be rigid business practices, but I really see no reason to not release to the english-speaking first world on the same day.

(Oh, and the HBO stuff is hard to get, even here -- GoT is only available on disc through Netflix, so the grass isn't quite as green as you might think.)

And Aereo loses, along with the poor and the old who watch OTA broadcasts. And, of course, the spectrum will be sold at well below value to the carriers -- AT&T and Verizon both being in the cellular game – because the populace doesn’t think of the spectrum as collectively theirs and the politicians can make a lot of money off that fact.

Any revenue the spectrum brings in would be a vast improvement over the complete and total giveaway to the TV broadcasters. Their free licenses should be yanked and they can bid like everyone else.

I disagree strongly on this point. The TV broadcasters were given their licenses for 'free', but with significant catches, mostly bundled up in 'Public Service' requirements. These include news, EBS/EAS service, regulations on what they can/can't show at what times, requirements for public service announcements, political coverage, etc. These services don't come cheaply. Note that in the 700MHz auction, the only block that carried anything like 'public service' requirements didn't sell. Wireless companies are quite, quite happy to shell out (hundreds of) millions of dollars so as to avoid any sort of public service requirements.

Instead of news we get infotainment and corporate propaganda, and instead of educational programming we get vectors for selling useless crap to our kids.

I'll take cold hard cash instead of 'payment' like that any day of the week and twice on Sunday.

Sadly, I have to agree with Faramir here. I'm not even sure how I feel about it as a revenue source since it's almost certainly just getting passed down to the consumers, though as a limited resource some cost should be. The bandwidth's nice, though.

You could earmark the money from the auctions for PSAs and targeted ads (which are easier with smartphones, etc.) but I think you'd do better trying to make better consumers of news (education) than you would trying to make a bunch of news that people might not even watch. The people who already want decent news probably have already dug up their sources.

My primary thought was the emergency alert system that we'd be losing if we completely ditched OTA TV. Yes, we'll still have radio, but pictures can be very important. Replacing that system in an IP-based world would be very, very difficult, and expensive.

The news and other aspects of public service, well again people can argue about their value, and I'm certainly not in a good position to know what they're worth. I do know that the readership of are technica skews incredibly far from the 'average' in terms of content delivery. That Thelen (just to choose one example; lots of people in these sorts of threads have similar views) could seriously ask 'how many people don't have smart phones' indicates that they're not familiar with how lots of people access information in the USA.

In my 33 years I've lived through multiple major hurricanes, a few Nor'Easters, a blackout, and the deadliest terrorist attack in our nation's history and I have yet to see anything other than a test of the emergency broadcast system, much less gotten any use from it. I think its value is vastly overstated.

In any case, to be on the safe side, I could see giving away one SD channel's worth of spectrum in the UHF band gratis, preferably to a PBS affiliate or other non-profit, in order to have an emergency video broadcast system in place. But certainly you don't need to a dozen channels worth of HD spectrum to be given away to highly profitable mega-corporation for emergency broadcasting purposes.

As to your other point, it's irrelevant to the question of information delivery how many people watch broadcast TV, because they aren't broadcasting information. The vast majority of it is "entertainment" and the little time reluctantly devoted to news and educational programming, is affirmatively counterproductive. Now I've got nothing against however people want to entertain themselves, but don't try and tell me that the real housewives dancing with Justin Beiber while cheer leading for whatever the latest foreign military adventure we've got cooking up is a public good that ought to be subsidized.

The great thing that both this and the gene patenting case have in common is the corporate argument: "Well, IP law doesn't _exactly_ work this way, but _look how much money we spent!_ Surely that pile of cash is worth some legal protection!"

In any case, to be on the safe side, I could see giving away one SD channel's worth of spectrum in the UHF band gratis, preferably to a PBS affiliate or other non-profit, in order to have an emergency video broadcast system in place.

This is just funny, because you clearly don't realize that PBS is one of the parties suing Aereo.

But Judge Denny Chin dissented, described Aereo's technology as "a Rube Goldberg-like contrivance, over-engineered in an attempt to to avoid the reach of the Copyright Act."

Key word here is "attempt". He does not believe they succeeded. He's also referring to Aereo's concerted efforts to stay within the reach of the Second Circuit, so that they'd have the Cablevision ruling to prop up their case. Regardless of Aereo's rather obvious attempt to exploit the Cablevision ruling, he believes that this case was substantially different from the Cablevision case as to not be held to that ruling.

This is what I was wondering ... because if the broadcasters' definition is the one that is eventually accepted, then this would have implications far beyond even the storage lockers that the author mentioned. Email would then fall into this definition. Actually, most of the internet would then fall into this definition. Should nearly every entity on the internet have to pay a licensing fee to the broadcasters?

That is utterly preposterous. In no way would a narrowing, or even a reversal of Cablevision result in that outlandish prediction.

So what is Congress' definition of a public performance? The broadcasters seem to be arguing that if there is a work, and it is at all being transmitted to someone else then it is public. It essentially seems that they want the definition to be that "private" would only include a person watching a work that they personally have a copy of.

17 U.S.C. § 101 wrote:

To perform or display a work “publicly” means—(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Judge Denny Chin wrote:

Giving the undefined term "the public" its ordinary meaning (see Kouichi Taniguchi v. Kan Pacific Saipan, Ltd.), a transmission to anyone other than oneself or an intimate relation is a communication to a "member[] of the public," because it is not in any sense "private."

Sort of confused. Aren't judges there in order to enforce the intent of the law, not the letter of the law? Companies try to use the letter of laws to skirt around things, like this case. And, the 2008 ruling seemed like it was the judges giving in to a letter-of-the-law interpretation, not the intent. The intent is to protect copyright owners' content from poachers. Folks finding funny ways to peek through the fence holes to see the ballgame w/o paying a ticket ... ok, they found a loophole. But, does that constitute letting folks violate another's ownership over something simply b/c the letter of the law had a loophole?

I'm trying to approach this from a neutral stand-point. Leaving out the aggravations with content owners and their paranoid, iron death grips ... I'm just curious from a legal stand-point why judges seem to be giving the thumbs up to letter-of-the-law loopholes that seem to violate the broader intent of the law.

If the letter of the law is clear, they follow it. If it's unclear, then they look at the legislative history and case law, often coming to different conclusions.

What was substantially different in Cablevision was that Cablevision was a cable provider with a license to retransmit broadcasts. I believe it was argued that, because of that, they already had the public performance rights. Aereo does not.

Judge Chin is right that this is a preposterous inefficient setup, but that in itself is not enough to impose liability. Cablevision basically says "it's not a public performance to make copies of shows for people if you keep each one in a private box for that person," and instead of a DVR in your room copying your cable feed, an antenna in a data center is copying your broadcast feed.

Furthermore, the Cablevision interpretation is just that - an interpretation, not law. The 2nd Circuit can strike it down or narrow it themselves, or it can go to the Supreme Court and be struck down or narrowed there, which I think it will be. When the Supreme Court declined to take an appeal on Cablevision, they did so because they felt it was an "unsuitable vehicle" for the discussion, and they expressed worry that the ruling could be misinterpreted to allow for this sort of sham business.

Maybe I'm in the minority here, but I get all my TV over the air. We don't have cable (and won't pay the ever-rising costs) and without cable, have very little choice wrt broadband (slow DSL is all we can get). So, what would we do for TV programming if, as so many of you seem to delight in, over the air TV were to die? Great (or neutral) for those with $$ and access to fast broadband, not so great for others.

You get satellite. Costs the same as cable these days. And you push for monopolies to be busted so you have options for broadband internet.

Well Aereo is not violating the letter of the law, but it certainly is questionable that they are violating the spirit of the law. The problem is that the letter of the law generally carries more weight. And on a personal note, I haven't even seen broadcast tv in years. OTA or cable, the whole notion of watching on their schedule is going the way of the dinosaur.

Society (in the US) is generally squeezing the average worker more and more and when we do have time to watch TV I sure as hell do not want to spend ~30% of my time watching commercials, so I don't.

The spirit of the law doesn't mean anything nor should it. As you allready said Aereo is not in violation of the law so their actions are not unlawful

If the actions of somebody requires the law to be changed the law can be changed. How a law is written is important which is the reason there is an entire profession to practice law. Lets take an example that might hit home for a great number of people.

The founding fathers of these Unites States of America more then likely NEVER thought a gun would exist that could fire hundreds of bullets a second. Yet the letter of the law protects the right to own one of those guns, and while new laws might make it virtually immpossible to get one of those weapons, the right to own one of those weapons is protected.

The spirit of law was for United States of America citizens to own personal rifles to protect their families and land from the government. Yet the letter of the law allows for other lawful purposes.

Maybe I'm in the minority here, but I get all my TV over the air. We don't have cable (and won't pay the ever-rising costs) and without cable, have very little choice wrt broadband (slow DSL is all we can get). So, what would we do for TV programming if, as so many of you seem to delight in, over the air TV were to die? Great (or neutral) for those with $$ and access to fast broadband, not so great for others.

I wrote about this on another site but will repeat it here for you specifically.

If you have at least a 3mb connection you would be able to download 6-10 tv shows a day and watch them the next day, exactly what i do. I do not have to put up with the advertising and slow connection which causes buffering to interfere with my viewing of the show. I setup my torrent software click on a few tv shows i want and watch them the day after they have been broadcast.

The advantage to this is that even with a very slow connection you get to watch what you want when you want and on any device you want.

There is no excuse for not turning to the internet for your tv shows and ignoring the crappy signal you receive from over the air broadcasts other than broadband speed and if you have less than a 3mb connection then you are in a very small minority of the population who possibly needs to find other forms of entertainment or maybe borrow tv shows from the library, even backing them up to your hard drive to watch later at a time you want with no pressure to watch before you have to return the library dvd's.There are many ways to overcome the problems of access to tv shows, your broadband provider is only one of them.

And hopefully you have a larger than 3mb broadband connection, this would enable you to download some of your shows in HD. Full HD not the compressed rubbish the cable companies supply.

Chickens are roosting. The broadcasters could have left Cablevision well enough alone. This was only a technicality, after all. They were getting paid regardless. But no...they had to go and open the can of worms, and now look what they're facing.

Here's the thing.

I don't mind cable companies bundling channels together, I don't mind them paying retransmission fees. This makes them not tv companies, or broadcasters, but rights collections agencies, like ASCAP, or BMI. Which means, when I download Game of Thrones, or Warehouse 13, or How I Met Your Mother, the producers and networks are getting paid, thanks to my monthly licensing fee collected by my cable company on behalf of HBO, USA, and CBS. Morally, and ethically, I'm in the clear and my conscience is clean.

I realize that may not legally be the case, but this is where the whole 'contempt for the law' idea grows from.

Maybe I'm in the minority here, but I get all my TV over the air. We don't have cable (and won't pay the ever-rising costs) and without cable, have very little choice wrt broadband (slow DSL is all we can get). So, what would we do for TV programming if, as so many of you seem to delight in, over the air TV were to die? Great (or neutral) for those with $$ and access to fast broadband, not so great for others.

How slow is your DSL?

4mbit is fine for live viewing, and everything else, you can just download and watch at your leisure.

Love you people with the dying business model remarks. You want them to die then don't cry when there is nothing new on TV.

Lots of immature adult aged children running around not aware that the Aereo they are cheering also fails without OTA TV. Same immaturity that let's them ignore the number of less economically fortunate who end up with no TV, potentially no mass communications involvement at all at that point. Around 40% of the US population gets their TV OTA.

Never thought of it that way... YOU ARE SO RIGHT!!!!... without OTA, Aereo dies!...